Lexington Professor Cited in Healthcare Ruling


Local attorney assess implications for business

In the larger news surrounding the recent Supreme Court decision on the Affordable Care act, a local law professor found herself sharing a small part of the limelight. Nicole Huberfeld, University of Kentucky Gallion & Baker Professor of Law, was cited by Justice Ruth Bader Ginsberg in a portion of her concurring opinion dealing with the expansion of Medicaid. Professor Huberfeld has done a significant portion of research and writing on the intersection of constitutional law and healthcare law, with a focus on federal spending, federalism and federal healthcare programs. Much of her recent writings have focused on Medicaid, and one of those articles found its way into a footnote in Ginsberg’s concurrence.

She didn’t find out on her own, however. She was busy reading and mentally digesting the opinion and hadn’t reached Ginsberg’s concurrence when someone told her.

Otherwise, she said, she might not have even known.

Knowing that one of the justices, or at least one of their clerks was reading her work was “amazing,” as well as “Thrilling…humbling.”

Huberfeld was quick to downplay the importance of the citation: “My work was cited for an historical point. It was really just used for background. But that’s okay.”

Still, for Huberfeld, there was a small element of enchantment with the idea of being cited by a Supreme Court justice in an opinion.
“We sometimes feel that we perform our research and publish it and get it out there, and to know that someone is actually reading it is really gratifying,” said Huberfeld. “When you write, you hope that someone reads your research.”

“Anyone,” she added, with a laugh.

Last Thursday’s ruling by the Supreme Court upholding the provisions of the Affordable Care Act removed the final impediment to the implementation of the law, which will have a considerable impact on the changing face of healthcare across the United States.

The key questions for the Supreme Court dealt with the individual mandate and Medicaid expansion (increasing qualified coverage) provisions of the Affordable Care Act. The Court considered the question of whether these components exceeded Congress’ powers under the Constitution. If they were found to be unconstitutional, the question then would be whether those specific provisions could be severable from the rest of the law or the entire law would have to be invalidated.

“The general presumption is that they will not strike down the whole thing. Usually there is a severability clause in the law so that courts wouldn’t be confronted with the issue,” said Doug McSwain, a partner at Wyatt, Tarrant and Combs. “The Affordable Care Act didn’t have a severability clause, though.”
The Court upheld the constitutionality of the individual mandate provision in a 5-4 ruling.

According to Professor Huberfeld, the Medicaid expansion provision was upheld, but modified.

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